ELRC424-22/23GP

Case Number: ELRC424-22/23GP
Commissioner: Leanne Alexander
Date of Award: 12 July 2023

In the ARBITRATION between:
Lethunya Alex Ntsoane
(Applicant)
And
Gauteng Department of Education
(First Respondent)

Details of hearing and representation
1. The arbitration took place at Tshwane South District Office (265 Pretorius Street Tshwane Central) on 17 March 2023, 21 April 2023 and 19 June 2023.

2. The Applicant, Mr Lethunya Alex Ntsoane, was present in the proceedings and elected to appear in his own capacity.

3. Mr John Marakalla, represented the Respondent.

4. The proceedings were conducted in English.

5. The Applicant referred an unfair labour practice dispute in terms of Section 186 (2)(b) of the Labour Relations Act, Act 66 of 1995 (“LRA”) on 7 September 2022.

6. The matter was set down for conciliation proceedings on 23 September 2022, the matter subsequently remained unresolved, and a certificate of non-resolution was issued.

7. The matter was thereafter, set down for arbitration proceedings on the above said dates.

8. The matter was postponed on 17 March 2023, due to the Applicant’s attorney being ill. I must place on record the Applicant on his own accord elected not to have legal representation during the proceedings held on 21 April 2023 and 19 June 2023. I must furthermore place on record that the Applicant abandoned his application for a postponement on 21 April 2023.

9. In terms of Section 138(7) of the “LRA” “within 14 days of the conclusion of the arbitration proceedings (a) the commissioner must issue an arbitration award with brief reasons”.

10. The matter followed an inquisitorial approach.

11. The hearing was digitally recorded, and manual notes were also taken.

12. I must place on record that both parties agreed to submit their closing arguments in writing by close of business on 27 June 2023. The submissions were duly received and considered.

The issue’s to be decided
13. Whether the 1st Respondent had committed an act/omission of unfair labour practice in relation to the suspension of the Applicant for 3 (three) months without pay. Should I find that the suspension without pay was unfair, I am required to grant the appropriate relief in accordance with the provisions of the LRA.

The background to the dispute
14. It was common cause that the Applicant was employed as a Head of Department (“HOD”) (General Education & Training (“GET”) Phase) since 1 January 2001.

15. The Applicant worked a 5-day week, at an average of 8 hours per day.

16. The Applicant was still in the employ of the Respondent.

17. The Applicant earned a monthly salary of R35, 473-75.

18. The Applicant sought the sanction to be set aside (3 months suspension without pay).

19. The substantive issues in dispute were that the Applicant’s contends the fairness of the allocation of classes and therefore the appropriateness/harshness of the sanction of 3 (three) months without pay. The procedure was not in dispute.

Summary of evidence and argument
The testimony led by the witnesses’ is fully captured on the recording of the proceedings. What follows is a summary of the material and relevant issues I must determine.

Applicant’s case
Mr Lethunya Alex Ntsoane
20. The Applicant testified under oath that he was a HOD (FAT/GET phase).

21. The essence of the Applicant’s testimony inter alia was that each year they were expected to do allocations thereafter a departmental meeting was called.

22. He submitted documentary evidence of a “timetable” that was drafted on 24 August 2022, where it was submitted that classes were split due to Covid-19.

23. He said that the classes that he refused to teach (grade 8H and grade 8G) were allocated to Ms Lubisi and Ms Hlatswayo, as such no classes were left unattended.

24. He said that a new timetable was developed during May 2021, and 4 (four) classes had been allocated to him, wherein he had indicated that it would not be possible for him to teach 9 (nine) classes in total. Which would mean 400 (four) hundred learners at a 40/45 teacher ratio which would have been an impossible workload.

25. He said that he informed his teachers whom the classes had been allocated too.

26. He said the treatment that he received was unfair as Ms Malengi, refused to teach science, yet it was never reported.

27. He said that it was impossible for a teacher to carry such a workload and it would not be effective if teachers were overloaded whilst ensuring stability within the Department.

Under cross-examination (only concessions or significant versions put are recorded

28. The Applicant explained that he had been an HOD for 19 (nineteen) years and his responsibilities included amongst others ensuring allocations, manage the assessment plan, check class books, develop teachers, provide learner/teacher support and to ensure that learning and teaching took place.

29. It was put to the Applicant that he refused to teach grade 8E, grade 9D, grade 9H and grade 9I as per his “notice of disciplinary hearing”.

30. The Applicant disputed this statement and submitted that he was responsible for the school timetables which made the school run and he had a time timetable then another one came which made it confusing. The timetable was changed without consultation.

31. The Applicant explained that the allocations would inform the timetable and he had 7 (seven) teachers within his department.

32. It was put to the Applicant that as per the Personal Administrative Measures (“PAM”) document he was supposed to be at 85% (PL2).

33. The Applicant conceded to this statement.

34. It was put to the Applicant that the PAM document was informed by the Employment of Educator’s Act, Act 76 of 1998 (“Employment of Educators Act”) insofar as how the work should be done, and the Principal would have the final say in the allocation of classes.

35. The Applicant conceded to this statement and submitted that the allocation of classes was completed in consultation with the HOD.

36. It was put to the Applicant when compared to Mrs Sekele, his workload was far less.

37. The Applicant disputed this statement and submitted that he would have had 9 (nine) classes.

38. It was put to the Applicant then he never attended the additional classes that had been allocated to him.

39. The Applicant submitted that they took them back to the allocated teacher as he had 18 (eighteen) classes at the time as they were split due to Covid-19. Furthermore, he attended the classes after a meeting was held.

40. It was put to the Applicant that in the staff meeting that was held he said that he would not teach the additional classes.

41. The Applicant disputed this statement.

42. It was put to the Applicant that he had dismally failed to carry out his instruction insofar as to ensure that teaching and learning took place.

43. The Applicant disputed this statement and submitted that the classes had been allocated to other teachers.

44. It was put to the Applicant that his refusal to teach classes had compromised the learners at school where 21 (twenty-one) learners received a mark of “1”.

45. The Applicant disputed this statement and submitted that the classes had been given to Ms Ngubisi.

46. It was put to the Applicant that the classes had been allocated to Ms Ngubisi, after he had refused to teach the allocated classes.

47. The Applicant disputed this statement and submitted that the classes had originally been allocated to Ms Ngubisi.

48. The Applicant explained that he had not lodged a grievance.

49. It was put to the Applicant that the allocation of classes was influenced by Covid-19 and grade 8 and 9 learners were split, therefore all educators had additional classes.

50. The Applicant disputed this statement and submitted that he had been unfairly allocated in the midst of Covid-19.

Respondent’s case
Ms Gertrude Masimone Mafoko

51. The witness testified under oath that she was a School Principal.

52. The essence of the Applicant testimony inter alia was that her roles included the daily running of the school, curriculum adherence and the non-negotiable to ensure teachers taught and learning took place. Furthermore, to assess the learners needs and ensuring that the needs of the school were met.

53. She said that she knew the Applicant on a professional level and the Applicant refused to teach grade 8E, grade 9d, grade 9H and grade 9I, as the classes for grade 8 & 9 were split during Covid-19 in order to adhere to social distancing, as such the girls and boys classes were split. However, the grade 12’s came to school every day which was non-negotiable.

54. She said that the Applicant was not granted more classes than the other HOD’s, as the other HOD, Mr Sekele, came in every day and he was at 75%, and the “PAM” document indicated a maximum of 85%.

55. She said that with the additional classes the Applicant would be at 62.8%, however the Applicant refused to teach the additional classes.

56. She submitted documentary evidence of the “minutes of the staff meeting held on 8 April 2021”.

57. She said that she did not agree with the Applicant’s contention that he only saw the additional classes that were allocated to him on the timetable. She said that the Applicant did not afford Management an opportunity to explain to him, there were complaints, and a subsequent meeting was held, such that the calculations and allocations were explained on the whiteboard.

58. She said that on 8 April 2021, the Applicant stated in front of his colleagues that he refused to teach the additional classes. Thereafter she held a further intervention where she was not present with the HOD (mathematics), Mr Simelane, Mr Khumalo and Mr Nhladalane, to assist, however even after the additional intervention they did not succeed.

59. She said that the Applicant was below the workload percentage, and still he refused to teach the classes that had been allocated to him.

60. She said that it was not true that the HOD (science), Ms Mlenga, refused to teach, as science had been allocated to Mr Mathebula, who did not serve notice that was the reason why there was no teacher. Furthermore, Ms Mlenga, was not at the school for a long time as she was afforded an acting Principal’s post at Phalenda Secondary School.

61. She said that the allocation of classes started at the Departmental level, a meeting would be held with the HOD, after the submissions it would be submitted to the Deputy Principal. The timetable would be drafted, which would then be presented to the teachers. The timetable was informed by qualifications and the needs of the school.

62. She said that she had not seen the document where the Applicant’s allocations were completed for his department.

63. She said that the Applicant did not inform his teachers to go back to his original allocation and teach the respective classes.

64. She said that the Applicant refused to teach the classes allocated to him due to being overloaded.

65. She said that prior to Covid a HOD would teach 4 (four) classes, yet the situation was different due to Covid-19, however the Applicant was still below the 85% as per the PAM document. Furthermore, the Applicant would have had 4 (four) free periods per day, yet some teachers only had 1 (one) free period per day.

66. She submitted documentary evidence of the “timetable committee report on grade 9H & 9I” on 1 June 2021, where it was submitted that there were many interventions held to assist the Applicant, however the Applicant was rude, unprofessional and refused to teach.

67. She said that the Respondent was allocated 2 (two) Covid posts, and these posts were allocated where there was a shortage. There was no shortage within the English Department.

68. She submitted documentary evidence of the “report of number of periods allocated to English FAL teachers and all HOD’s” dated 17 May 2021.

69. She said that the Applicant was the lowest as he did not teach the classes, therefore he was at 57%, however if he had taught the classes, he would have been at 62.86% (which was well below the “PAM” % allocation).

70. She submitted documentary evidence of the “allegations of misconduct” dated 19 April 2021, wherein it was submitted that “he refused to teach grade 8E, 9D, 9H & 9I”. Furthermore, she pursued this as the Applicant defied instructions and displayed disrespect towards herself.

71. She said that it was not true that the Applicant taught the 4 (four) classes that had been allocated to him, she was a witness to the fact that he did not teach those classes.

72. She submitted documentary evidence of the “minutes of the second consultation by Principal with Mr Ntsoane LA concerning non-attendance of classes” dated 23 April 2021, where it was submitted that she had tried to convince the Applicant to attend the classes as the leaners were suffering. Furthermore, she was intending to give the Applicant a final written warning and he informed her “that she could do whatever she wanted”.

73. She said that the 4 (four) classes were taught by Ms Ngobese and Ms Kubesi, and they both had volunteered to teach the classes.

74. She submitted documentary evidence of a “mark allocation for Grade 8E1 (boys)”.

75. She said that by the Applicant refusing to teach the classes it impacted on the performance of the school, as such the Respondent submitted incomplete provincial records.

76. She submitted documentary evidence of the “PAM” document where it was submitted that “the principal must determine the allocation of subjects, timetable and resultant scheduled teaching time after consultation with the educator staff”.

77. She said that the timetable was compiled by the committee and Mr Simelane who was well experienced with timetable allocations, which was informed by the notional hours 27.5 (twenty-seven point five) per week and it was not the Applicant’s responsibility, it was informed by the curriculum needs of the school.

78. She said that the Applicant’s allocation complied with the “PAM” document (post level 2 – 85%), the Applicant was on 62.86% (with the additional classes), however he did not teach them, therefore he was at 57% well below the 85% allocation.

79. She said that the Applicant taught 3 classes out of 9 periods in a day.

Under cross-examination (only concessions or significant versions put are recorded

80. The witness explained that if you took 4 periods/35 periods per week x 100 = 62.86%.

81. It was put to the witness how could the HOD manage the department if they were not responsible for the allocations.

82. The witness disputed this statement and submitted that the HOD was part of the allocations as they held a meeting with their teachers, however it was dependent on the curriculum needs of the school.

83. It was put to the witness that he did not recall having a meeting with herself.

84. The witness disputed this statement and submitted that the minutes were written by the Deputy Principal, which supported the facts and way he conducted himself was unprofessional.

Re-examination

85. During re-examination, the witness explained that the Applicant refused to teach grade 8E, 9D, 9H & 9I as per her instruction.

Mr Sifiso Simelane
86. The witness testified under oath that he was the HOD (mathematics).

87. The essence of the witness testimony inter alia was that his roles included to ensure curriculum delivery and departmental compliance.

88. He submitted documentary evidence of the “notice of disciplinary hearing” where it was submitted that when the school completed the school readiness, the HOD met with the teachers to plan the allocations. Once completed it was taken to the Principal to review and if there were any challenges, they were discussed with the respective HOD, however the Principal had the final say in terms of the allocations.

89. He submitted documentary evidence of the “PAM” document where it was submitted that the allocations were informed by the document, and a HOD allocation was at 85%

90. He said that he disputed the Applicant’s contention that the workload was not shared equally as they had a meeting in this regard, and the Applicant was on 57.14% he was far from 85%. Furthermore, as compared to the other HOD, Mr Kabini, who’s workload was at 77.5%.

91. He said that the Applicant refused to teach grade 8E, 9D, 9H & 9I, furthermore he was a witness to his refusal to teach the allocated classes.

92. He said that he was tasked by the Principal, Ms Mafoko, together with his colleague Mr Khumalo, to form a committee in order to try and find a solution for the Applicant.

93. He submitted documentary evidence of a “timetable report on grade 9H & 9I” dated 1 June 2021, where it was submitted that they met with the Applicant on 12 May 2021. Furthermore, they wanted learners to be taught, however they could not find a solution and the Applicant would not agree to teach the classes that were allocated to him.

94. He said that the teachers, Ms Hlastwayo and Ms Hlobisi, who taught the classes allocated to the Applicant taught them on their own accord as they had offered their services therefore, they were not instructed to do so by the Applicant.

95. He said that the Respondent was impacted negatively by the Applicant’s failure to teach as the learners received no marks for term 2 due to the Applicant. Furthermore, it was a township school (Section 21) where the learners did not pay school fees, and the parents had hope for the children that they would change society.

96. He submitted documentary evidence of the “term 2 marks for grade 9 boys” where it was submitted that task 4 (four) and task 2 (two) there were no marks submitted and the learners obtained a level 1 (one) which meant “not achieved a score of less than 30%”, and only 2 (two) learners obtained 30%.

97. He said that the learners would have had a learning gap in their education as they were not taught.

98. He said that he was not aware that Ms Mulenga, refused to teach as he saw her teaching, however she was promoted to a caretaker Principal’s post at another school.

99. He said that the Applicant was not overloaded as he complied to the “PAM” document as he had 20 (twenty) periods out of 35 (thirty-five) periods, which meant he had 15 (fifteen) free periods, if he was overloaded, he should have been above 85%.

100. He submitted documentary evidence of the “minutes” of the staff meeting that was held on 6 & 7 April 2021, where it was submitted that the Applicant was part of the meeting with the additional classes, he would be at 62.86%. Furthermore, the Applicant finally taught 5 (five) classes which was 13 (thirteen) periods per week, which was actually at 37%.

101. He said that the calculation was correct as the Applicant has 20 (twenty) periods/35 (thirty-five) periods = 62.86% (18 (eighteen) classes was at 57.14%).

102. He said that perhaps Ms Sekele, was overworked at 75% due the grade 12’s coming to school on a daily basis.

Under cross-examination (only concessions or significant versions put are recorded

103. The witness explained that the learners came to school on a rotational basis, Monday’s, Wednesday’s and Friday’s versus Tuesday’s and Thursday’s. Therefore, 4 (four) classes per day x 3 days per week = 12 and five classes per day x 2 days = 10. 22 periods/ 35 periods = 62.86% (due to the rotation of the leaners).

104. The witness explained that the Respondent did not deviate from the “PAM” document as they operated under the protocols at that time and applied social distancing.

105. It was put to the witness that he would have had to have taught 400 (four hundred) learners with the additional 4 (four) classes.

106. The witness disputed this statement and submitted that the size of the classes were 20 (twenty) learners, therefore 5 (five) classes meant 100 (one hundred) and not 400 (four hundred).

107. It was put to the witness that his gripe was that it was impossible to mark for 9 (nine) classes (36 (thirty-six) learners per class) which was not practical and unfair.

108. The witness disputed this statement and submitted that he had 4 (four) free periods as his contact teaching time had reduced therefore, he would have had ample time to mark.

109. The witness explained that the grade 8’s and 9’s were coming on a rotational basis, whereas the grade 12’s, Mr Sekele’s classes came every day and he had 30 (thirty) periods and 10 (ten) free periods which placed him at 75%.

110. The witness explained that the Applicant now had 4 (four) classes, but at that time things were not equal as there were more classes, but less contact time when it was factored out.

111. It was put to the Applicant that the learners did not have any marks, yet the teachers had been allocated to the classes.

112. The witness disputed this statement and submitted that the teachers who offered to teach the additional classes on their own accord had only done so at the end of term 2 (two), therefore as far as he was aware his teachers did not receive his instruction.

113. The witness explained that when he was suspended the replacement teacher, Mr Ntsake, fitted into his timetable which included the 4 (four) classes that he refused to teach, furthermore the incident that he was talking about was during Covid times.

Re-examination

114. During re-examination, the witness explained that a new committee was formed to deal with the timetable and the Applicant formed part of that, they had meetings every weekend, however the fact remained that the learners were not taught.

115. During re-examination, the witness explained that that the Applicant had not given instructions to Ms Hlatswayo and Ms Lubisi, as they had volunteered to teach the additional classes.

Ms Leka Mulenga
116. The witness testified under oath that she was a Deputy Principal.

117. The essence of the witness testimony inter alia was that her roles included ensuring curriculum delivery, dealing with the timetable and ensuring intervention classes took place.

118. She said that the Applicant failed to teach classes. At the end of the year the HOD’s called a meeting and agreed on allocations for the following year then it was presented to the Principal who made the final decision.

119. She said during 2021, the learners came to school on a rotational basis (grade 8 & 9) and the classes were split into boys and girls.

120. She said that the Applicant had 4 (four) classes for grade 8 and 5 (five) classes for grade 9 which equated to 12 & 10 periods therefore 22 periods/35 periods = 62.86%.

121. She said that the Applicant refused to teach the additional classes and they proposed a timetable committee which the Applicant formed part of, yet he never attended those meetings.

122. She submitted documentary evidence of the “PAM” document and submitted that it was complied with by the Principal as she looked at the experience, qualifications and the curriculum needs of the school.

123. She said that it was not true that the Principal did not consult with the staff as the minutes were evidence of such.

124. She said that she was a witness to the fact that the Applicant refused to teach the additional classes and Ms Ngubuse taught grade 8G and Ms Hlatswayo taught grade 9I, for their love of teaching and they had not been instructed to do so by the Applicant.

125. She said that the Applicant had not lodged a grievance.

126. She said that it was not true that she refused to teach physical science at any stage, and she had taught physical science since 2015.

127. She said that by the Applicant refusing to teach the additional classes had a negative impact on the learners, as they had failed.

128. She said that the School Based Assessment (“SBA”) was an assessment whereby each subject had their own tasks and submitted documentary evidence of the learners “marks”, where it was submitted that some tasks had no marks, which meant that the learners had not been taught, nor had they been given an assessments.

129. She said that Mr Simelane, Ms Matjie and herself were involved in the allocations and after receiving it from the HOD’s, it then went to the Principal, thereafter it was communicated to the staff.

130. She said that the Respondent dealt with the Applicant’s challenge as she had an informal meeting with him, thereafter the Principal proposed a meeting, then a new timetable committee was formed.

131. She submitted documentary evidence of the “timetable committee report on grade 9H & 9I” where it was submitted that the Applicant formed part of the new committee and he was supposed to have formed part of the solution.

132. She said that the Applicant was a leader, the South African Democratic Teachers Union (“SADTU”) chairperson and was well respected at school and by not teaching the classes that he was allocated, he did not care nor take any responsibility.

Under cross-examination (only concessions or significant versions put are recorded)

133. It was put to the Applicant that he was at 57.14% with 5 (five) additional classes, therefore it would have been impossible for him to have coped.

134. The witness disputed this statement and submitted that grade 8’s had 12 (twelve) periods and the grade 9’s had 10 (ten) periods which equated to 22 periods out of 35 = 62.86%.

135. The witness explained that if you put it in the context of Covid there was a reduced number of learners per class, it applied to all of the teachers, therefore they all received more classes.

136. It was put to the witness that his timetable was not balanced, and he was overloaded when compared to the learner/teacher ratio.

137. The witness disputed this statement and submitted that as per the “PAM” document he was supposed to be at 85% and the allocations were informed by the curriculum needs of the school, teacher’s experience and qualifications, therefore the Respondent made optimum use of the human resources at that time.

138. It was put to the witness that she was coerced in writing the minutes of the meeting that was held with himself.

139. The witness disputed this statement and submitted that he refused to talk during the meeting that was held and what she had written in the minutes had transpired.
140. The witness explained that she had not formed part of the second committee meeting that was formed.
141. It was put to the witness that the suspension did not warrant the charge, as such he felt the pain and was hard done by.
142. The witness disputed this statement and submitted that he was given an opportunity and he walked away from the situation, furthermore he formed part of SADTU and held managerial roles/duties.

Re-examination

143. During re-examination, the witness explained that the Applicant was not overloaded.
144. During re-examination, the witness explained that during the pandemic the Respondent had to observe social distancing which informed the allocations.
145. During re-examination, the witness explained that Mr Sekele, was given 6 (six) classes as each of his classes came in every day, whereas the Applicant’s classes did not come in every day as it was rotational, therefore as per the Applicant’s allocations it was a misrepresentation. The Principal’s document on page 22 of the Respondent’s bundle was the official document as approved by the Principal.
146. During re-examination, the witness explained that she had not formed part of the second committee as she had been excluded, only Mr Simelane formed part of the second committee.
147. During re-examination, the witness explained that the Applicant refused to teach grade 8E, 9D, 9H & 9I as per the instruction that he received from the Principal.
148. During re-examination, the witness explained that there was no ambiguity insofar as the charges that had been levelled against the Applicant.

Analysis of evidence and argument

149. Section 186(2)(b) of the LRA provides that:
“’Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving –
(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee”.

150. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered the arguments, principles of law, Codes of Good Practice together with the other evidence, oral and documentary, presented by the parties during the arbitration, as reflected in the record of the hearing.

151. The Applicant claimed that the Respondent committed an unfair labour practice relating to disciplinary action short of dismissal, i.e., the issuing of a sanction of unpaid suspension for a period of 3 (three) months.

152. The onus in an unfair labour practice disputes falls on the Applicant. The standard of proof applicable in hearings of this nature is identical to the civil standard – “the (applicant) must prove the case on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1. The employee must prove not only the existence of the labour practice, if it is disputed, but also that it is unfair. The employer must actually have done something or refused to do something.

153. Mere unhappiness or a perception of unfairness does not establish unfair conduct - see Du Toit et al Labour Relations Law (5th ed) 488. What is fair depending upon the circumstances of a particular case and essentially involves a value judgement. The fairness required in the determination of an unfair labour practice must be fairness toward both employee and employer (see National Union of Metalworkers of SA v Vetsak Co-Operative Ltd & others 1996 (4) SA 577 (SCA) 589C–D; National Education Health & Allied Workers Union v University of Cape Town & others (2003) 24 ILJ 95 (CC) paragraph 38).

154. The arbitration of the dispute in casu entails a review of the employer’s actions. The Constitutional Court’s examination of the concept of fairness where it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair, is relevant - see Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC).

155. The learned John Grogan’s definition of section 186(2)(b) of the LRA provides that “to fall within the terms of Section 186(2)(b), disciplinary action against an employee short of a dismissal must be disciplinary both in nature and in intent. Action is ‘disciplinary’ if it is aimed at correcting errant behaviour for which the employee is responsible”.

156. In respect of the charge the crux of the allegations against the Applicant is that the Applicant “failed to carry out a lawful order or routine instruction without just or reasonable cause in that you refused to teach English FAL grade 8E, grade 9D, grade 9H and grade 9I classes allocated to you as per the Bona Lesida High School timetable”.

157. The PAM document provides that:
A.4.2.3 “Scheduled teaching time during the formal school day will be specified with time allocation per post level. The principal must determine the allocation of subjects, timetable and resultant scheduled teaching time after consultation with the educator staff”.
A.4.3.1 “The time allocated for teaching in respect of different post levels will differ according to the size of the school. In smaller schools’ principals and their deputy principals are required to do more teaching than in large schools with bigger staff establishments. The actual hours must therefore be established in relation to the curriculum needs of the school, the timetable and staff establishment of the school. Scheduled teaching time is expressed as a percentage of the total time that learners in the particular grade are required to be taught.
A.4.3.2 The allocation of scheduled teaching time should be done in such a manner that it: A.4.3.2.1 Maximises the individual abilities of all educators.
A.4.3.2.2 Optimises teaching and learning at the institutional level.
A.4.3.3 In general terms, the following may be considered as guidelines in determining scheduled teaching time”: -
Primary school Ratio per 1000 educators
Post level 1 Between 85% and 92%
Post level 2 Between 85% and 90%
Deputy Principal 60%
Principal Between 10% and 92%, depending on his/her post level.
NB Principals of one-person schools are expected to teach 100% of the scheduled teaching time.

Secondary school Ratio per 1000 educators
Post level 1 Between 85% and 90%
Post level 2 85%
Deputy Principal 60%
Principal Between 5% and 60%, depending on his/her post level.

158. It was the Applicant’s contention that he taught the classes that were allocated to him, and he prepared and was responsible for his Department’s allocations. Furthermore, he was not consulted with Management insofar as the allocations were concerned. He was overloaded in terms of the workload, such that the allocations were unfair. Therefore, the punishment imposed was too harsh.

159. It was the Respondent’s contention that the Applicant refused a reasonable and lawful instruction in that he refused to teach grade 8E, grade 9D, grade 9H and grade 9I. The conduct negatively impacted on the Respondent and the learners’ right to education.

160. With the evidence before me, the Respondent’s witness Ms Gertrude Masimone Mafoko testified that the “allocation of classes started at the Departmental level, a meeting would be held with the HOD, after the submissions it would be submitted to the Deputy Principal. The timetable would be drafted, which would then be presented to the teachers. The timetable was informed by qualifications and the needs of the school.” This version was furthermore corroborated by the Respondent’s other witnesses, Mr Sifiso Simelane and Ms Leka Mulenga.

161. With the evidence before me, the Respondent’s witness Ms Gertrude Masimone Mafoko testified that the “allocation complied with the “PAM” document (post level 2 – 85%), the Applicant was on 62.86% (with the additional classes), however he did not teach them therefore he was at 57% well below the 85% allocation”. This was furthermore corroborated by the Respondent’s other witnesses, Mr Sifiso Simelane and Ms Leka Mulenga.

162. With the evidence before me, the Respondent’s witness, Ms Gertrude Masimone Mafoko, testified that she was a witness to that fact the Applicant refused to teach the classes that had been allocated to him being grade 8E, grade 9D, grade 9H and grade 9I. This was furthermore corroborated by the Respondent’s other witnesses, Mr Sifiso Simelane and Ms Leka Mulenga who confirmed that they witnessed the fact that the Applicant did not teach the additional classes that had been allocated to him.

163. With the evidence before me, the Respondent’s witness, Ms Leka Mulenga, submitted that “Ms Ngubuse and Ms Hlatswayo” taught the Applicant’s additional allocated classes “on their own accord” and they had not been instructed to do so by the Applicant. This was furthermore corroborated by the Respondent’s other witnesses, Mr Sifiso Simelane and Ms Gertrude Masimone.

164. I must place on record that the Applicant was not a credible witness and his versions appeared to be contradictory at times.

165. The Applicant submitted that he was “overloaded”, and the allocations were unfair.

166. Having considered the submissions, the “PAM” document provided that a post level 2 should be at “85%”. With the additional classes the Applicant would only have been at 62.86%, well below the required 85%. Regardless of this and with the evidence before me the Applicant failed to teach the additional classes, as such his actual allocation was at 57%, again well below the 85%.

167. With the evidence before me, on a balance of probabilities I am inclined to accept the Respondent’s version that the Applicant refused to teach grade 8E, grade 9D, grade 9H and grade 9I.

168. Notwithstanding the above the Respondent attempted to reach out to the Applicant and formed a “second committee” to address the Applicant’s unhappiness and the allocations, yet the Applicant failed to participate and still would not teach the classes that had been allocated to him.

169. Furthermore, with the evidence before me the during 2021, South Africa was still in the midst of a pandemic and teaching was not the “norm” per say as the classes were split (grade 8 & 9), therefore inevitably due to the adverse circumstances and compliances to social distancing the number of classes would increase yet contact teaching would decrease due to the adherence of protocols at that time.

170. It is common law that an employee is obliged to carry out their duties in good faith, adhere to reasonable and lawful instructions and further the Respondent’s best interests. In these circumstances, the Applicant failed to comply with a reasonable and lawful instruction and in so doing exposed the Respondent to poor performance levels as learners were not taught.

171. In the case of Nampak Corrugated Wadeville v Khoza [1999] 2 BLLR 108 (LAC) the Court held that “the determination of the appropriate sanction is a matter which is largely within the discretion of the employer. However, this discretion must be exercised fairly. A court should, therefore, not lightly interfere with the sanction imposed by the employer unless the employer acted unfairly in imposing the sanction. The question is not whether the court would have imposed the sanction imposed by the employer, but whether in the circumstances of the case the sanction was reasonable”.

172. In the case of SAPO v Jansen Van Vuuren and others (2008) 29 ILJ 2793 (LC) the Court held that “Commissioners may set aside suspensions imposes as a disciplinary penalty if they find, on the merits, the employee was not guilty of the conduct for which he or she was suspended”.

173. In the case of NUM and East (Pty) Ltd (2013) 34 ILJ 978 (LC) the Court held that “the suspension without pay as a form of disciplinary penalty may be considered as an alternative to dismissal if there is a valid reason for that penalty. Such suspension does not contravene the BCEA”.

174. In the case of Country Fair v CCMA and others (2008) 29 ILJ 2793 (LC) the Court held that “suspension without pay is a permissible disciplinary penalty where appropriate, and for a reasonable period”.

175. Therefore, from the above-mentioned authorities, it only becomes an unfair (act/omission) labour practice when one can show that the discretion exercised by the employer was without reason or based on a wrong principle or in a biased manner.

176. Section 28(2) of the Constitution of the Republic of South African, 1996 (“The Constitution”) provides that “the best interests of the child are paramount importance in every matter concerning the child”. Every child has the right to education and the learners’ rights were trampled upon as they were not taught by the Applicant and therefore, they received scores of “1” for English for term 2 during 2021.

177. I am satisfied that the Respondent did not commit a practice that would constitute unfair action by the Respondent that resulted in unfair disciplinary action which falls within the definition of an unfair labour practice as provided for in section 186(2)(b) of the LRA. The Respondent did not act irrationally, capriciously or arbitrarily. In the matter before me, I have no doubt in my mind that the decision by the Respondent to impose a sanction of a 3 (three) months suspension without pay was reasonable, objective and fair under the circumstances.

178. I therefore find no substance in the argument that the Applicant was treated unfairly. In casu where there is no obvious or glaring deviation from the prescribed process, it would not be justified to interfere with the exercise of management’s discretion.

179. I accordingly make the following Award:

Award

180. The Applicant is not entitled to any relief.

181. The matter is dismissed.

Thus, signed and dated on the 12 July 2023.


Leanne Alexander
ELRC Panelist